JUDGMENT : B.K. Patra, J. - The Appellants thirteen in number, along with eight others, who have since been acquitted, were tried before the Sessions Judge, Puri on charges under Sections 148, 452, 323, 324, 325, 307 and 302, Indian Penal Code and were convicted as follows: Sl. No. Name Sections Sentence. under which convicted 1 2 3 4 1. Dharmananda Sahu 304 Part II, 307, 148/452 3 years. 1 year on each count (sentences to run concurrently.) 2. Banabihar Kar 325 148/542 1 year 6 months on each count (concurrent.) 3. Brajabandhu Kar 324 148/452 9 months. 6 months on each count (concurrent.) 4. Natha Sahu 324 148/452 9 months 6 months on each count (concurrent.) 5. Srinibas Sahu 323 148/452 7 months. 6 months on each count(concurrent.) 6. Hata Sahu 323 7 months. 7. Bholanath Kar 148/452 6 months on each count(concurrent.) 8. Jadumani Kar 9. Maheswar Sahu 10 Gandharab Sahu 148/452 6 months on count(concurrent.) 11. Banchha Sahu 148/452 6 months on each count (concurrent.) 12. Baraju Sahu 13. Radhu Sahu 2. The prosecution case against them in brief is that on 23-11-1964, at about 6.30 A. M., they along with others formed an unlawful assembly armed with deadly weapons and assaulted the prosecution party, as a result of which, apart from injuries on many of the prosecution witnesses, a child by name Sebati was killed. P.w. 1 Narain Sahu has two other brothers Nata (p.w. 3) and Bata (p.w. 4). Rama (p.w. 2) is Narain's son. Re has another brother Rata whose wife is Duti Dei (p.w. 5). Sebati, the girl who died during the occurrence is Duti's daughter. Appellant No. 6 Banchha Sahu is the paternal uncle of Narain. Baraju Sahu Appellant No. 7, Radhu Sahu Appellant No. 8, Gandharba Sahu Appellant No. 9 and Maheswar Sahu Appellant No. 5 are sons of Banchha Sahu. Maheswar, however, was given in adoption to late Chaitan Sahu who was one of the brothers of Banchha Sahu. Narain's father Uchhab had predeceased his father Bira. Hence Bira, during his life time had partitioned his properties including homestead plot Nos. 962, 963, 964 and 965 between his son Banchha and his grandsons Narain and his brothers. Maheswar, however, was given in adoption to late Chaitan Sahu who was one of the brothers of Banchha Sahu. Narain's father Uchhab had predeceased his father Bira. Hence Bira, during his life time had partitioned his properties including homestead plot Nos. 962, 963, 964 and 965 between his son Banchha and his grandsons Narain and his brothers. Four rooms on the southern side of plot No. 962 were in occupation of Narain and his brothers while three rooms on the southern side and two rooms on the northern side of plot No. 963 were in possession of Banchha and his sons. As the partition was not effected by a registered document, there were disputes regarding the properties between Narain and Banchha and several Panchayats had been held to bring about an amicable settlement amongst them which however proved futile. The dispute between the parties was particularly confined to the dotted portion in the sketch map (Ext. 18/1) which the Panchayatdars desired to be vacated by Narain in favour of Banchha. But Narain evidently did not agree to that decision. It is against this background, it is alleged, that on the morning of the date of occurrence, Banchha threw some nightsoil packed in straw towards the house of Narain. Narain protested and Thereupon, all the Appellants and the other accused persons who have since been acquitted came to the courtyard in front of Narain's house armed with Tadas, Kataris, and Kuntas. Of these, Dharmananda Appellant No. 1, Natha Appellant No. 2 and Rata Appellant No. 4 live opposite the house of Narain and Banchha, while others, other than members of Banchha's family are residents of another Sahi. It is the prosecution case that Borne persons of Nasikeswar Mauza, where the occurrence took place, had formed a committee which includes Banchha and others but as Narain did not cooperate with the committee, be was boycotted, and that therefore, the members of the Committee bore a grudge against him and helped Banchha in his disputes with Narain. 3. What actually took place in the courtyard of Narain is deposed to by Narain (p.w. 1), his son Rama (p.w. 2), his brothers Nata (p.w. 3) and Rata (p.w. 4), his sister-in law Duti (p.w. 5) and 3 outsider witnesses P.ws. 6, 7 and 9. 3. What actually took place in the courtyard of Narain is deposed to by Narain (p.w. 1), his son Rama (p.w. 2), his brothers Nata (p.w. 3) and Rata (p.w. 4), his sister-in law Duti (p.w. 5) and 3 outsider witnesses P.ws. 6, 7 and 9. P.w. 6 had gone to accused Narain Sahu (not p.w. 1) to purchase Pidia and not finding him at home, he was coming back when on hearing a hulla near the house of p.w. 1 he stood and watched the occurrence. P.w. 7 Sridhar was returning from his Pana Baraj where he bad slept during night and saw the occurrence. P.w. 9 Debendra was in his paddy field about 200 yards from the place of occurrence and on hearing the hulla be came there and found an armed mob in Narain's Court yard and therefore he stood at the spot and saw the occurrence. According to these eye-witnesses, after the assailants came to Narain's courtyard, Appellant No. 1 Dharamanda Sahu caught hold of Narain from behind and Appellant No. 2 Natha struck him on his head with a Katari, Narain was then assaulted by Hata (Appellant No. 4:), Radhu (Appellant No. 8) Baraju (Appellant No. 7), Brajal Kar (Appellant No. 11) and one Krupasindhu (since acquitted) on his shoulder, knees and hands. Meanwhile, on hearing the hulla raised by Narain, his son Rama (p.w. 2) and p.w. 3 Nata bad come to the spot. But Brajabandhu Kar (Appellant no 11) pierced a Kunta towards Rama's neck which grazed past his neck and priced the right hand of Nata (p.w. 3). Rama went to the rescue of Nata when Dharmananda (Appellant. 1) released Narain and dealt a Katari blow on the head of Rama causing a bleeding injury. On seeing Rama being attacked, his aunt Duti (p.w. 5) who was then holding her baby Sebati came running at the spot and dragged Ram to save him from further assault. Dharmananda raised another Kati blow on the head of Rama who was behind Duti, but the blow slipped and struck the child Sebati on the front side of her head. Dharmananda aimed a third blow at Rama but this also struck Sebati on the back of her head resulting in her death. Dharmananda then pushed Duti who with her child fell down on the ground. Dharmananda aimed a third blow at Rama but this also struck Sebati on the back of her head resulting in her death. Dharmananda then pushed Duti who with her child fell down on the ground. Meanwhile, Appellant No. 10 Banbihari Kar had struck with a Tada on the right hand of Nata at the same place where he had been previously struck by Braja. He was also assaulted with Tadas by Appellant No. 5 Maheswar, Appellant No. 12 Jadumani and others and he fell down unconscious. P.w. 4 Bata who also came to the place of occurrence on hearing the hulla was surrounded by Appellant No. 3 Srinibas, Appellant No. 4 Hata Appellant No. 9 Gandharba and Appellant No. 13 Bholanath Kar who assaulted him with Tadas. 4. While the rioting was still in progress, Rama (p.w. 2) escaped through his Bari and proceeded to Udayapur Out Post and lodged information with the Police at 10.45 A.M. Ext. 1 is the F.I.R. This information was sent to the Police Station at Kakatpur where the formal F.I.R. was recorded at 2 P.M. The Investigating Officer (p.w. 17) reached the spot at 5 P.M. and found the dead body of the child Sebati laying in the court yard and the injured persons, Narain, Nata and Bata in the room of Narain. He saw four heaps of straw and ashes mixed with human dung lying in front of Narayan's room. He also noticed several blood ratches in Narayn's courtyard and a pool of blood in front of the second and third rooms which were in Narain's occupation. The dead body of the child was lying at a distance of 6 feet from that pool of blood. Blood stained earth was seized from two places and subsequently serological examination disclosed that it was human blood. He sent the injured persons Narain, Nata, Bata and Rama for medical examination of their injuries. Having noticed injuries on Appellants Banchha and Baraju, the Investigating Officer also sent them to Kakatpur for medical examination. After holding inquest over the dead body of the child, it was sent for post-mortem examination. 5. An the accused persons pleaded not guilty. According to the defence, it is the prosecution party consisting of P.ws. Having noticed injuries on Appellants Banchha and Baraju, the Investigating Officer also sent them to Kakatpur for medical examination. After holding inquest over the dead body of the child, it was sent for post-mortem examination. 5. An the accused persons pleaded not guilty. According to the defence, it is the prosecution party consisting of P.ws. 1, 2, 3, 4, 6, 7, and 9 who formed an unlawful assembly and being armed with Tadas and Kataris came to the court yard of Appellant Banchha Sahu and assaulted him and when the latter shouted for help his sons Baraju, Maheswar and Radhu came to his rescue, but they were also assaulted. To defend themselves, they picked up some split bamboos lying there and there was an exchange of blows between both sides in which members of both parties were injured. They stated that excepting the accused persons above-named, no other accused persons had come to the spot. According to the defence case therefore it is the members of the prosecution party who are aggressors and that the occurrence took place in the courtyard of Appellant Banchha Sahu. 6. The learned Sessions Judge after a careful analysis of the evidence on record and the circumstances of the case found; (1) that the occurrence in question took place in the courtyard of Narain's house and not in Banchha's courtyard as alleged by the defence; (2) and that the Appellants are the aggressors, (3) that Dharamanand aimed two Kati blows at Rama but they missed him and struck the girl Sebati who was then in the arms of her mother (p.w. 5) and it is as a result of this blows that Sebati died; (4) that Banbihari Kar Appellant No. 10 dealt a blow with a Tada on the right arm of Nata which resulted a fracture; (5) that Brajabandhu Kar Appellant No. 11 inflicted a punctured wound with a Kunta on the right arm of p.w. 3 Nata; (6) that Nata Sahu Appellant No. 2 caused hurt to Narain with a Katari and that Appellants Srinibas A/3), assaulted Bata; Rata (A/4 assaulted Narain and Bata; Bholanath A/13) caused hurt of p.w. 4, Bata, Jadumani (A/12) assaulted Nata with a Tada and Maheswar (A/5) assaulted Nata with a Tada. The learned Judge also believed that all the Appellants were members of an unlawful assembly armed with deadly weapons and had taken part in the occurrence. The learned Judge also believed that all the Appellants were members of an unlawful assembly armed with deadly weapons and had taken part in the occurrence. He therefore, convicted and sentenced them in the manner already indicated. 7. Mr. H. Kanungo appearing for the Appellants assails the findings on three broad grounds, namely, (1) in the F.I.R. lodged by Rama at the Out Post he had Darned 11 persons and stated that they and 40 others were the assailants. Conspicuously however he had not mentioned the names of Banchha Sahu and his sons Baraju, Maheswar, Gandharb and Radhu an omission which assumes some significance in view of the fact that Banchha and Baraju had been injured during the occurrence; (2) All the prosecution witnesses who claim to have been the occurrence completely denied about the mutual assault or infliction of the injuries on any of the accused persons, although the Investigating officer noticed injuries on the persons of Banchha Sahu, Baraju Sahu and sent them up for medical examination.-vide Exts. 14 and 15 and Appellant Maheswar Sahu got himself medically examined for his injuries-vide Ext. A; (3) P.ws. 6 and 9 had stated before the Magistrate while being examined u/s 164, Code of Criminal Procedure that there was exchange of blows between the prosecution party and the accused party. But during trial they completely suppressed this fact and stated that they do not know how some of the accused persons came to have injuries on their persons. It is therefore contended that no reliance should have been placed by the learned Judge on their testimony 'regarding the occurrence. It is urged ~hat if their evidence is excluded, the other eye-witnesses who speak about the occurrence are Narain Sahu and the members of his family, and in view of the admitted enmity between them and the accused persons, their evidence should not have been believed; (4) The finding that Appellant Dharmananda caused the death of Sebati cannot be sustained having regard to the evidence and circumstances of the case; (5) The learned Judge ought to have held that the occurrence took place not in the Court yard of Narain Sahu but in the Court yard of Banchha Sahu. 8. I shall take up the last point first. 8. I shall take up the last point first. Apart from the evidence of the eye-witnesses, there is the positive testimony of the Investigating Officer (p.w. 17) that when he reached the spot at about 5 P.M. On the date of occurrence, he found four heaps of straw and ashes mixed with human dung lying in front of Narayan Sahu's room and he also found several blood patches in the Court-yard and a pool of blood in front of middle line of second and third rooms of Narain, and the dead body of Sebati was lying about 6 feet away from the pool of blood. Blood stained earth was taken from two places and were Bent for serological examination and were certified to contain human blood. No suggestion was even made to the Investigating Officer that he found anything in the courtyard of Banchha to suggest that any scuffle had taken place at that spot. In view of the afore said circumstances, it is futile to contend that the scene of occurrence was in front of Banchha's house and not in front of Narain's house. I am, therefore, satisfied that the learned Sessions Judge has come to the correct conclusion in holding that the occurrence took place in front of Narain's house. This finding itself is sufficient to sustain the conviction u/s 452 of these of the accused persons whose participation in the occurrence is proved. 9. To appreciate the other contentions raised by Mr. Kanungo, it is necessary to refer to the injuries suntanned by Banchha and his sons Baraju and Maheswar. Banchha had a superficial lacerated wound 2" x 1/8" on the outer side of his left arm, a bruise 4" x 1" on the left side of his back and a linear scratch on the left side of his back. Baraju Sahu had a scratch on the left hand and an ecchymosis 3" x "2" on the right hand and another ecchymosis 2" xl" on the right chest and a healed up lacerated wound 1?" x 1/8" over the middle part of the head 4?" above the occipital protruberance. Baraju Sahu had a scratch on the left hand and an ecchymosis 3" x "2" on the right hand and another ecchymosis 2" xl" on the right chest and a healed up lacerated wound 1?" x 1/8" over the middle part of the head 4?" above the occipital protruberance. P.w. 13, who examined these injuries on 26-11-1964, that is, three days after the occurrence was of opinion that all the injuries on Banchha and all the injuries excepting the first one on Baraju could have been caused by lathi and injury No. 1 on Baraju which was a scratch could be caused by coming in contract with some hard and blunt substance. Maheswar Sahu was examined by the doctor p.w. 8 on 28-11-1904 and he found on his person an abrasion 1" x 1/6" on the left side of a forehead, hematoma with a small abrasion over it on the left parietal region an incised would semi-circular in shape about 1?" x 1/8" on the right palm and an ecchymosis about 3" x ?" on the antero-lateral aspect of the lower half of the left arm. In his opinion, the incised wound was likely to be caused by a cutting weapon while the three other injuries could be caused by a hard and blunt weapon. 10. It would thus be seen that the injuries found on the persons of Banchha and his sons Baraju and Maheswar are all simple injuries and are not of such nature as would particularly attract anybody's attention. I have already found that the occurrence took place in the Court yard in front of Narain's house and there is evidence to show that a large number of persons variously armed came there to attack Narain. Narain was then alone in the Court yard and it is only after he was attacked and shouted for help that the other witnesses including the sons of Narain reached the spot. It is futile to expect that when Narain and his relations were attacked in the manner alleged by the prosecution, they would have meekly submitted to the infliction of the injuries without resistance. Admittedly, injuries sustained by members of the prosecution party are of a more serious nature as would be evident from the medical certificates Exts. 10 to 13 and the X'ray plate ext. 4. A young girl on the prosecution side is killed. Admittedly, injuries sustained by members of the prosecution party are of a more serious nature as would be evident from the medical certificates Exts. 10 to 13 and the X'ray plate ext. 4. A young girl on the prosecution side is killed. In such a situation it is also not unlikely that the witness would particularly notice a few simple injuries sustained by some of the assailants. Hence, non-mention of the same either in the F.I.R. or in the deposition of eye-witness cannot be considered to be such a suppression so as to discredit their testimony altogether. P.ws. 6 and 9 appear to have made statements during their examination u/s 164, Code of Criminal Procedure that there was exchange of blows between the parties; although they have not said so in Court during trial. As stated before, it is only natural that when the prosecution party was attacked, they would have resisted and attempted to counter attack the accused. In the circumstances, their action is fully justified and this explains how some of the accused persons had received injuries. It is only in these cases where due to non-explanation by the prosecution of injuries found on some of the accused persons a doubt is created in the mind of the Court about the truth of the prosecution case as to how the occurrence took place, that the suppression assumes significance and on that ground the prosecution case is thrown out. But, where, as in the present case, the evidence leaves no scope for any doubt that the accused persons are the aggressors and their number is considerably larger than the prosecution party, that the accused persons variously armed came to Narain's house and started the attack, that under such circumstances it is only natural to expect that the prosecution party would resist the attack and, if possible, make a counter attack as a result of which a few of the accused persons might have received minor injuries, non-mention of such injuries in the evidence of prosecution witnesses cannot be viewed so seriously as to throw out the prosecution case altogether. 11. Reference has already been made to the evidence given by eye-witnesses P.ws. 1 to 5 and 6, 7 and 9. Evidence has been let in to show that p.w. 7 Sridhar Biswal bad previous litigations with some of the accused persons. 11. Reference has already been made to the evidence given by eye-witnesses P.ws. 1 to 5 and 6, 7 and 9. Evidence has been let in to show that p.w. 7 Sridhar Biswal bad previous litigations with some of the accused persons. The learned Sessions Judge has therefore rightly held that the antecedents of Sridhar Biswal cannot make him an independent and disinterested witness. But so far as p.w. 6 Alekh Mohanty is concerned, there is no suggestion that he has any motive to depose against the accused persons or that he is in any way interested in Narain. On the other hand, his evidence goes to show that Narain had previously deposed against him in a criminal case. His presence during the occurrence has been admitted by Appellant Banchha and his sons and also by D. W. I. Appellant Benchha and his sons during their examination in Court stated that on the morning of the date of occurrence while Banchha was sitting in his house, P.ws. 1 to 4 and 6. 7 and 9 and Narain's brother Hata Sahu came armed with lathis excepting Rata who was carrying a Katari and started the attack and they described the manner in which the attack is alleged to have taken place. In support of their case they examined one Michhu Khatei (D. W. 1) and be stated that after the prosecution party went, to Baraju Sahu's courtyard, Narain asked Banchha to vacate possession of the house and on the latter refusing, Narain dragged Banchha by band and Rata dealt a blow with a lathi on his back. When Banchha raised an alarm, his sons came there, and picked up split bamboos lying in the court yard and thereafter exchange of blows between the parties took place. For reasons already given neither the statement of Banchha and his sons nor that of D.V. 1 to the effect that the occurrence took place in Banchha's house can be believed. But it appears from their statements that they admit the presence of P.ws. 6, 7 and 9 at the time of occurrence. Although p.w. 7 may be an interested witness, there is no sufficient material to discard the evidence of P.ws. 6 and 9. As the evidence given by p.w. 7 is only in conformity with that of P.ws. 6 and 9 and P.ws. 6, 7 and 9 at the time of occurrence. Although p.w. 7 may be an interested witness, there is no sufficient material to discard the evidence of P.ws. 6 and 9. As the evidence given by p.w. 7 is only in conformity with that of P.ws. 6 and 9 and P.ws. 1 to 4, I see no reason why the evidence of p.w. 7 should be discarded. The evidence of these witnesses establishes the prosecution case beyond doubt. 12. It was next argued that p.w. 5 Duti was at the time of occurrence in advanced state of pregnancy and that it is not likely that she could have come to the scene of occurrence. But her evidence is that she was in the Bari with the child Sebati in her arms and that when she saw Rama being attacked, she came to the place of occurrence to take away Rama inside the house. There may not be anything unnatural in the conduct of p.w. 5. But what is significant is that Duti herself had not received a single scratch on her body while it is the prosecution case that the child she was holding on her waist had received two injuries on her head. It is the prosecution case that both the blows which ultimately landed on the bead of the child were aimed at Rama but be managed to avoid them and they ultimately struck the head of the child. Both were bleeding injuries and consequently Duti's wearing cloth must have become wet with blood. But significantly enough this cloth bad not been seized on the ground that by the time the Sub-Inspector reached the spot in the evening of the date of occurrence, Duti bad already washed the cloth. With her child lying dead in the court-yard why Duti should have been so particular as to wash the cloth has not been satisfactorily explained. In the circumstances, it appears to me to be doubtful whether Duti was actually holding the baby on her waist when the latter received injuries as a result of which she died. If this becomes doubtful, it would not be safe to accept the prosecution case that the blows which caused the child's death were aimed at Rama but ultimately struck the child. If this becomes doubtful, it would not be safe to accept the prosecution case that the blows which caused the child's death were aimed at Rama but ultimately struck the child. It may be that Duti actually came with the child and before she went to the rescue of Rama she put down the child on the ground or it may be that the child on her own came to the place of occurrence and got injured. In the circumstances, I must hold that neither the charge u/s 304, Part II against Dharmananda for having caused the death of the child nor the charge against him for attempting to commit the murder of Rama has been established beyond all reasonable doubt. 13. In the result, I would allow the appeal to the extent that the conviction of Appellant No. 1 Dharamananda on charges under Sections 304, Part II, and 307, Indian Penal Code and the sentence imposed on him therefore are set aside. The conviction of all the Appellants on other charges and the sentences imposed on them are fully justified and are upheld. The appeal is partly allowed to the extent indicated above. Final Result : Allowed